DefendantNewb

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Everything posted by DefendantNewb

  1. You need to search this forum for Tennessee. Start researching the civil procedure in the court in which your case is filed. On the Summons and Complaint, it will state at the top which Court the case has been filed in. Google that court, and find the rules of procedure. Read it ALL. If it's the first Summons and Complaint, it is not a call to Court, but rather a call for you to "Answer" the Complaint. Stop panicking. You're going to have to put some time into researching civil procedure, and collection litigation, like everyone else here. Here are some starting points: http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb.html Rules of Civil Procedure | Tennessee Administrative Office of the Courts
  2. They might take you to court to have you testify against your assets, or garnish your wages. They might file liens on any property you do own, which means you can't sell it without paying them off first. What you need to be most concerned with is a bank levy, in my opinion. With a judgement, a collector can have the funds in your checking, savings, etc. frozen and paid to them up to the amount they have the judgement for until the judgement is satisfied. Your accounts are sitting ducks with a judgement out against you
  3. I forgot to include a Certificate of Service (which I'll refer to as C of S) for the Counter-Affidavit I filed with my Answer. I filed the Counter-Affidavit separately, or with a separate paperclip, because it's not considered part of the "Answer" in my state and must be filed this way. Anyway I forgot to include a C of S page with it. I included a C of S with my Answer.. I'm so fricking ticked at myself. In Michigan, failing to counter the original Affidavit filed by the Plaintiff can land you in summary judgement ville by way of prima facie evidence. Can I file a C of S for the Counter or is it too late? I'll have to have it notarized, etc. and it will be obvious that I failed to include it originally. Do you need to do anything special when you forget to include 'something?' ie state somewhere on your Certificate of Service that "all parties were served on xx date, but notification of that is late." In less horrific terms of course. I did serve the Plaintiff with ALL the paperwork I filed with my Answer, naturally, but they might leap at this and state they never received it.
  4. It should say on your credit report. Were they two separate lawfirms or separate collection agencies? My CA hired one lawfirm to come after me, then another.
  5. Once they sell the debts (or when they sue you, a lot of original issuers are doing this now), you might be able to settle- but I wouldn't wait until it gets to that point. Making payments to the original issuer is much better than ending up in court with them or a third party junk collector. The debt isn't going to magically disappear, especially now with everyone defaulting. Everyone's getting sued. Don't let it get to the point of litigation, it's not worth the headache and the threat of bank levies and wage garnishments. You borrowed the money, and they have the proof since these debts are fresh. I'd make payment arrangements ASAP before they charge off and sell or sue. Just tell them what you can afford and they'll work with you.
  6. This was fine, you can make arrangements to settle without admitting. This was their attempt to get you to ADMIT. You've now admitted to owing the original issuer. Therefore, in your response to summons, you must admit to owing the original issuer, that is, if they recorded the conversation you had with them and plan to use it against you should you deny owing the original issuer. This is tricky, and some might suggest that you simply deny per rule 2.111©(3) and make them prove it, however in my humble opinion, you've shot yourself in the foot and you do not want to risk perjury. Although perjury is rarely brought against Defendants in credit card litigation, it happens!
  7. At this point I have no idea how you should proceed legally. I'm sure more experienced posters will be along shortly with some suggestions, as nothing on here constitutes formal legal advice. At this point, if they do end up winning a judgement against you, you're in for a HUGE bill. Attorney's fees, the original judgement amount, the fee they paid to have you served, etc. will all be tacked on at once. With said judgement, they can continue to levy your bank account until the judgement has been satisfied. So, if you're paid on the 1st, they'll levy on the 1st, the 15th, and the 1st of the month thereafter until it's paid. (They usually assume that people are paid on or around the 1st and 15th so that's when they levy). In addition to the bank levies, if those prove to be unsuccessful, they can summon you to Court for garnishment. If you plan to fight this, you need to do so CAREFULLY. A lawyer will charge you upwards of 1-2k to represent you, and if you lose, after your lawyer's been paid, you're out that money you could have put towards the judgement. You're dealing with a large claim here. In my opinion, anything exceeding 1k should be treated with the utmost delicacy due to the fact that "attorney's fees" alone can run you a couple grand if granted. Meaning you could easily end up paying 2k on top of what the judgement is for, depending on how long litigation is drawn out. I've seen cases of $200, $600, on upwards of $3,000 in attorney's fees granted in judgements, it just depends on the judge and the amount in question. What were the details in the Affidavit? Did they attach any legally binding documentation? ie credit card statements, original credit contract, bill of sale, etc. Also, when was the Affidavit made (signed) and how many days past the filing of the summons and complaint? The problem here is that most banks keep fantastic records of 'media' on file, they're quite diligent. Especially now. If the company (suing you) does in fact request media from the original issuer, should you choose to fight this, they might be able to do so easily (and at your expense should they win). I've seen companies tack on charges of $500.00 just for "Discovery." Meaning they charged the Defendant $500 to request media from the original issuer. Media being the original credit contract, a bill of sale from the original issuer to the current debt owner, credit card transactions, the like. There are so many variables, and each case is incredibly unique. Some judges are fair and have a sympathetic bone for those consumers that are targeted by sharks, others love to stick it to consumers. Personally, I've been assigned a judge that's known for throwing people in jail for simple infractions. So, I'm treading carefully, buying time, and trying to come up with the total amount the Plaintiff is asking for so I can settle before it goes to trial if I have to. Although I'm confident in my abilities, I am not willing to risk a default judgement that contains astronomical fees. If you have some dough, I'd suggest attempting to settle. If you're flat broke, you might be better off accepting a payment arrangement from the collection agency to avoid an insane judgement that they'll hit you with at once should you lose. If you've got 4k available to you and it wouldn't put you on the streets if it was taken, you should fight it. If you do not have 4k, you need to settle. Debt collectors are required to file in "Civil" court for a reason. They (the Court) want you to resolve your issue civilly, without them. That's why before a judge will hear most collection cases, they ask if the parties have, or sometimes request that the parties do, attempt to resolve the issue without them. When you're gambling with such a large potential judgement, you need to be so, so careful. If you decide to fight, the links I provided you with will aid you tremendously.
  8. It's my understanding that a Defendant in a debtor case rarely gets off that easily, especially in Michigan. Unless the judge is fed up with junk debt collectors, or you can get them on a technicality, I think you're in for it. I'm probably in for it as well, that being said. I wish you luck! Will follow your case/posts.
  9. As for your Answer to the Summons and Complaint, title it simply. Make sure you use a header at the top of every new document, (not every page), including the court's title, case number, the Plaintiff's information (all of it), "VS" (your information). Basically just copy what the summons and complaint looks like, only apply it to you. Then proceed with your document title, in this case: ANSWER TO COMPLAINT 1. List EACH allegation brought against you just as it appears on the original summons. Make sure you answer honestly. You can use Rule 2.111©(3) in Michigan to state that you lack sufficient knowledge to determine whether or not the allegations are valid- this constitutes a denial. Make sure you clearly state that you either deny or admit each count. Use this as reference: http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb.html BUT remember, they're not from Michigan. Each state differs.
  10. You may have already compromised yourself by calling the collection agency. Try and recount exactly what was said, including any possible admissions. If you admitted to the debt during that conversation, it will be on record, and you will be committing perjury if you deny owing said debt in your Answer. Your Counter-Affidavit should most definitely cite why you disagree, i.e. Hearsay, Statue of Limitations, etc. In Michigan, at least in my Court, it was free to file the Answer and the Counter-Affidavit. Make sure you read this thoroughly: http://coa.courts.mi.gov/rules/documents/1Chapter2CivilProcedure.pdf
  11. Quote fail. Quote: Originally Posted by calawyer View Post If the complaint has a cause of action "money had and received", “money lent or paid”, “goods sold and delivered”, or “quantum meruit” you can also ask for a BOP. Try this for a form: To PLAINTIFF________ and [its/their] attorneys of record herein: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account. [add anything else relevant i.e. contract assigning the account to plaintiff] Dated: _________ _____________________ DEFENDANT Good luck.
  12. THIS is sweet. Michigan seems to make it incredibly easy for CA's to collect, and Defendant's to bite the bullet. In Michigan, you have to "ask" the CA if they will agree to Discovery, and they can say no lol. Then you have to file for compliance, but only after you've asked them in front of the judge.
  13. Well, that's not true. Filing did run me a hefty little bill at Fedex Kinko's
  14. Nancy- I filed the Counter-Affidavit (simply named) along with my Answer today. In it, I basically addressed each allegation made in the Plaintiff's Affidavit, and stated reasons why I deny the claims. I also threw in my two cents and stated Hearsay, (my only legitimate legal argument thus far, which isn't good) and made a few references to my rights as per the Fair Debt Collection Practices Act. What I would suggest is citing real cases that pertain to your state and your case specifics, in which the outcome was found in the Defendant's favor. I would also read up on your state's procedural rules, these are very important. For example, today I found out that in my state, filing for Discovery is premature in that the Plaintiff can deny it until the judge grants it. (Unless the Plaintiff agrees to it, which they won't, they want to do as little work as possible and get a summary judgement). So I almost wasted $20 filing a motion that they would have ignored, because they can. On a positive note, it didn't cost me a dime to file my Answer or my Counter-Affidavit.. which was surprising. I'm relieved thus far.
  15. I tried looking up your previous posts to see what the details of your case were and another user by the name of "melo" is coming up, posts dated for '09. Can you link to your case details? Can't provide much help without reviewing them
  16. I'm following your posts closely, as I too am in Michigan, and I am a few steps behind you. I just filed my Answer and Counter-Affidavit today. I wouldn't know what to do if my Plaintiff contacted me to "discuss arrangements." They could be attempting to bait you into admitting to the debt for which they fully intend to get a summary judgement for by way of a. recording the conversation, or b. getting you to sign a consent judgement for monthly installments. Which, by the way, would require you to disclose your place of employment, wages, etc. It's messy. They MIGHT be willing to discuss a settlement, which would be as much as they could possibly squeeze out of you, in return for ceasing litigation. Either way, if you contact them, MAINTAIN your stance and do not admit to the debt. You can discuss a settlement without admitting to anything. I feel like we're both walking on eggshells atop a net, above shark infested waters LOL One slip and we crack all the eggs and come tumbling down to our brutal demise!
  17. Does anyone have an example of how to properly draft a Counter-Affidavit? I'm wondering if you treat a Counter-Affidavit as you would an Answer- in that, you address each numbered paragraph in the Plaintiff's Affidavit, and state why you disagree/why their claims are invalid. Or, do you create your own numbered paragraphs and state reasons why the Plaintiff's Affidavit is invalid? Should you request that the Plaintiff's Affidavit be stricken at the end? Is a Counter-Affidavit filed as a counterclaim or a motion, to strike? Thank you to anyone to might have any advice
  18. How does one properly draft a counter-affidavit? Is it considered a counterclaim?
  19. Does anyone know how to properly format a counter-affidavit? and if so should it be filed as a counterclaim and the fee for a counterclaim be paid upon filing it with the Answer?
  20. Make sure you get every document notarized and include a Certificate of Service along with anything you send the Courts. Certificate of Service I, the undersigned, certify that the included documentation, pages __ through __, were served on all parties in the case by depositing one original and one copy in the U.S. Mail, postage prepaid, in an envelope addressed to: ________ on ??/??/2011.
  21. Why is it that we must send two copies of the response to the Plaintiff? One copy and one original? Should I mail them separately? Thank you
  22. Send everything to the lawyer, the Court is just the mediator at this point. Lawsuits are between the two parties involved not the Court- until of course the Court gets fed up with one side and makes a "judgement."
  23. I have until Tuesday to file, but I'm going in there Monday. Yes I've waited a while, I needed to do some research and round up some cash. As of now I have enough to pay half of what they've requested, so that might be beneficial if after I file they send me a settlement letter. By the way thank you for your responses, I really appreciate them